Director of Public Prosecutions v Barling

[2018] VCC 1521

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01612

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY BARLING

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2018
DATE OF SENTENCE:	19 September 2018
CASE MAY BE CITED AS:	DPP v Barling
MEDIUM NEUTRAL CITATION:	[2018] VCC 1521

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Ms E. Millar	Victoria Legal Aid

HIS HONOUR:

1Rodney Barling, you have pleaded guilty to one charge of arson.  That crime carries a maximum penalty of fifteen years imprisonment.  You pleaded guilty when the matter resolved after investigations that had to take place and I accept that that plea of guilty is accompanied by appropriate remorse. You must of course get the utilitarian benefit of that plea of guilty.  You have no real prior convictions of any significance, other than one for offensive behaviour which I am told was simply sleeping in a car when you were destitute.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

3A summary of the offending is that in August of 2017, you moved into a retirement living complex in Bacchus Marsh.  There were thirty-eight residents residing there.  On 25 January 2018, at approximately 11.30 pm, police received 000 calls saying that a male was walking on the Bacchus Marsh Highway, that male was you.  You were intercepted by police.  You told the police that you were "Walking to Ballarat" and that you "Had enough of this town".  One can only assume you were talking about Bacchus Marsh.  In an effort to remove you from the road, they said they would drop you at the train station which they did.  When asked your name, you gave a name of Fraser which was not you.  It was at that time that the police received the notice to attend the fire at the retirement village.  The police became concerned that the person who resided in the unit that was on fire was indeed you, and investigations would tend to have confirmed it.

4You had been dropped at the Bacchus Marsh Railway Station and when police went there to find you, you were not there, but a couple of hours later, you turned up back at the unit where the fire had been.  The situation is, I asked questions during the course of the plea as to how the fire occurred and for reasons that are pretty obvious, I accept in this situation that you have got no idea how that fire started and have no memory of it.  That is not an uncommon in situations with schizophrenics who are in a florid circumstance.

5The Crown case is based on the fact that there were two, on the evidence of Mr Kelleher, two seats of fire and that it was your premises and I suppose that you were walking away from it.  On the other hand, the presumption of deliberate ignition comes from the fact that there was no other observable causes.  There was no evidence of any flammable liquid having been spread throughout the unit and there is no evidence of any flammable liquid being present in any substantial way on the furniture.

6As I have indicated, it was the pattern of burning that said to have - two separate fires and that essentially was the Crown case.  You of course had two cigarette lighters on you when you were arrested and I have no idea whether you smoked or not.  But be that as it may, you have pleaded guilty to the charge and I think that is a very sensible approach that has been taken in all the circumstances that exist here.  In the normal course of events, arson is a serious charge.  In the normal course of events, it calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  By far the most usual sentence for arson is that of active imprisonment of considerable propositions when it is a residential premises, which is attached to other residential premises.

7However, yours is a very different situation.  After you were arrested, you were interviewed, if it can be called that.  There was a third person present with you and that third person was concerned that you could not even understand the police's questioning.  You had a go at an interview and made some no comment answers in that record of interview.  What is clear now, and may not have been at the time is that you were, on the material of Dr Carroll who is well known to me, in the grips of a truly psychotic episode.  You were having command hallucinations and as you said to Dr Carroll, you lost your mind in the Ballarat cells. 

8You had been diagnosed with schizophrenia in your early twenties.  You have been able to maintain an existence for a long time.  There is nothing remarkable about your childhood.  You left school in Year 10.  You did an apprenticeship as a boilermaker and were able to keep that until the mid-thirties when your illness just simply became too much.  From then on in, you have been on support or disability pensions and your mental health is as described in the submissions and the report of Dr Carroll.

9Unfortunately, in around November of 2017, a couple of months prior to this, you, as is sadly sometimes the case, thought that you were doing all right and you stopped taking your medication.  It was in those circumstances that this offending occurred.  The manager of the premises where you had been staying for that couple of months became very concerned about your mental health and indeed, the day before this fire occurred, had rung the mental health people and left a message that somebody come and see you.  Unfortunately, time ran out and all this occurred.

10The report of Dr Carroll is on file and I do not think I really need to have to go into the details of it, but I simply just, for those with a genuine interest, point out what your mental problems have been.  As is pointed out in the very helpful submissions, if I may say so, of your counsel, you have been on a disability support pension for well over a decade.  At the time this occurred, you were living independently, though in a retirement village, which was giving you your basic facilities, as well as your daily meals.

11You have previous history of admissions to psychiatric facilities in Victoria, in Queensland and the most recent being approximately two years ago.  The longest admission you had to a psychiatric institution previously was nine months.  When you were remanded on this matter in the early stages, you were acutely unwell, and then ultimately put in the Psychiatric Wing of Ravenhall Prison.  You were subsequently transferred to mainstream once your medication stabilised.  In custody, you were receiving depot injections of Zuclopenthixol, as well as Olanzapine every night.  Forensic psychiatrist Mr Carroll said that you appear to have led a relatively isolated existence since the onset of your mental illness, some twenty or thirty years ago.  He said it is consistent with the chronic negative symptoms of schizophrenic illness, that is lack of motivation and impaired socioemotional function.

12He said that your mental health has greatly improved during your time in custody, though you still display significant features of that schizophrenia.  At the present time fortunately, you are free of active symptoms such as delusions or command hallucinations.  Professor Carroll says that the account you gave him as an I have indicated, was consistent with:

"A severe psychotic relapse, secondary to cessation of compliance with his regular antipsychotic medication.  His mental state, when apprehended by the police, including the incongruous clothing and irritability, is consistent with the disorganise acutely psychotic state".

13He goes onto say:

"There appears to be a direct relationship between the alleged offending and his condition". 

14It is in those circumstances that quite clearly, the principles in the decision Verdins are brought into play.  Your moral culpability, despite the objective seriousness of what actually occurred from all this, has to be moderated with a great deal of common sense.  Whether you intended to destroy the unit, whether you were just simply trying to burn a piece of furniture, nobody knows and I do not think you do and unfortunately, probably never will.

15General deterrence in this situation have to be moderated because of your severe psychotic relapse.  Specific deterrence I think are now probably not as significant for you Mr Barling.  I accept that in these circumstances, because of the conversations you had with people subsequently, and the efforts that you have made on your own behalf, that you realise now what the consequences of not taking your medication would be.  I accept that you have genuine remorse for what occurred.

16Any right minded member of the community would not seek denunciation of you and there has to be an element of punishment because obviously you have pleaded guilty, but that element of punishment should be nowhere near what it might have been for a person who was doing this out of anger or some other form of motive.  Your motive was simply being a very unwell, on a mental basis, man.

17In summary of it, Professor Carroll says:

"That although you have long term chronic negative symptoms of schizophrenia, that those symptoms would not impede your rehabilitation back into the community, since he appears to have been capable of independent functioning prior to ceasing his medication".

18He goes onto say:

"Mr Barling has no personality dysfunctional with substance abuse problems, therefore his risk of reoffending is linked to his propensity for psychosis.  Provided he remains on medication, the risk of reoffending is very low".

19I totally accept that that is indeed the case.  It then becomes a question of what happens to a man who has been on remand for in excess of seven months, who is now about to go into the community.  Your solicitors and the people representing you have in a very laudable fashion made investigations in regard to all that.  Firstly, to the people at Ravenhall are well aware of your circumstances and indicate that upon your release, they will be endeavouring to do what they can to assist you.  You have been referred to the CIP, with short term, six to twelve months voluntary outreach program for clients with a severe mental illness and they should be able to work with Corrections, I am assuming, to ensure that there is continuity of patient care, after your release today.

20The writer of that says that she has been working with you since your referral and will continue to work for you up to six weeks after your release.  She says, and this is comforting, that you have acknowledged the need for ongoing mental health involvement and that you will be supported in that process of linking you in to the local mental health area.  She said that she will continue to work with all the stakeholders in regard to this.  Further to that, and bearing in mind your own preference to try and support yourself independently, Clara Care has said that they are in a position to offer you accommodation.  It will be with an inclusive service.  It includes all medication, administration and supervision, meals, cleaning services and personal care are provided and I interpolate, it is hoped that you will be able to do some of that for yourself.

21They will be connecting you to a visiting GP.  You will be seen fortnightly to monitor your wellbeing and mental health and that GP would administer any depot injections that are required.  Should your mental health state deteriorate, Clara Care staff would engage Psychiatric Services.  It is a situation where you are not in custody and you are able to move about as long as they know where you are.

22It seems to me, Mr Barling, that from the community's point of view and your point of view, that is the optimum result.  Out of all this, which on the face of it appears so serious, but when one examines your personal circumstances, it is really just a piece of human tragedy.  I have had you assessed for a community corrections order.  They have found you acceptable and accordingly, in these circumstances, where you are very keen on rehabilitating and very aware of what you need to do to maintain that rehabilitation, I am prepared to accede to the submissions of your counsel.  That was, firstly that there be a community corrections order without any form of gaol.  However, I think in this situation, the objective seriousness, leaving aside matters personal to you, is such that the sentence should indicate that it was a very serious example of arson in terms of the consequences.  There were thirty-eight people there.

23I am assuming that a lot of them were elderly.  This could have ended in total disaster.  Fortunately it did not and fortunately sensible people have been involved from the outset and it has been resolved.  It was suggested in the report from Corrections that there be judicial monitoring.  I do not see any point in that.  What I am going to simply do is give you what is known as a combination sentence.

24You will be sentenced to be imprisoned for a period of 236 days.  I direct that 236 days be reckoned as having been served under that sentence.  You will immediately today be placed upon a community corrections order, if you agree to sign it.  That means that you in 48 hours will need to report to Ballarat Corrections and take it from there.  They are well aware of Clara Care and they are well aware of the circumstances surrounding your release and the community corrections order that I impose to follow on, will be for an extended period of time, bearing in mind your needs and indeed will be - with conviction as it must be, but it will be for four years.

25The only conditions I will be putting on that will be supervision, so that people can keep an eye on you and the mental health condition.  If problems arise with where you are living or your mental health circumstances or anything like that, as you understand and as Ms Millar who represents you will explain to you, these orders can always be brought back to be looked again by me to see whether there needs to be an additional condition put in, or conditions removed.  But it seems to me that this disposition provides the greatest protection for the community and the greatest protection for you personally.  As has been pointed out to me, you have very little in this world and hopefully you can at least maintain your mental health.  All right, so if you want to sign that for me.  If you would not mind going down to him Ms Millar?

26MS MILLAR:  Yes.  Thank you, Your Honour.

27HIS HONOUR:  All right, that community corrections order is made.  Just stand up for me for a moment Mr Barling, just for a moment.  You are on a community corrections order, all right?  They will release you shortly.  You have got to go back over to go through the paperwork, so you cannot just walk out of there, all right?  But you will be out very soon.

28You then go onto the community corrections order.  I am assuming there are going to be people here to take you to where you are going to live from Corrections.  And you will understand, there is a couple of things.  Do not breach the corrections order, all right, because you will get brought back and then I have got to do something else.  If things go wrong or if you are not travelling well mentally, tell people and it can always be brought back.  So whatever assistance I and the court and the various people involved can do, we can do. 

29The thing I really want you to always bear in mind is, and I know if you are unwell that is going to be a very difficult thing to do, but do not go off that medication, my friend.

30OFFENDER:  No.

31HIS HONOUR:  All right?  You could have killed people.

32OFFENDER:  Yeah I know, I'm sorry.

33HIS HONOUR:  You know?

34OFFENDER:  Yeah.

35HIS HONOUR:  I know you are genuine, but you have just got to - if you think "I am not going to take that pill", just think of what could have happened down at Bacchus Marsh.

36OFFENDER:  It's a jab up the bum.

37HIS HONOUR:  Well, that is right.  So he is on no pills at all, that will help. So do not avoid the jab up the bum, all right, whatever you do.  All right, and I will say the other thing is, having dealt with many schizophrenics over the years, I think Mr Barling at least has maintained a degree of warmth that is uncommon. 

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